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November 3, 2012

"Many death row inmates oppose bid to halt executions"

The title of this post is the headline of this notable piece appearing in the Los Angeles Times yesterday. Here are excerpts:

Police and death row inmates agree on one thing, a law enforcement group told its members: They both oppose next week's ballot measure to replace the death penalty with life without parole.

That statement, in a newsletter from the Los Angeles Police Protective League opposing Proposition 34, highlighted what some California criminal defense lawyers have been saying for months.
Many death row inmates who are years away from execution would rather gamble on being executed than lose their state-paid lawyers, a preference that seems to be confirmed by a limited, informal survey of some on California's death row.

"That is a significant sentiment, since the death penalty in California is mostly life without parole anyway," said Don Specter, director of California's Prison Law Office, who personally supports the initiative. "So the chances of them getting executed are not that high, and if Prop. 34 passes, their cases will be treated differently."

California has not executed an inmate in six years and has put to death only 13 offenders since 1978. If Proposition 34 passes, death row inmates will be merged into the general prison population and have their sentences commuted to life without parole.
"If you are thinking you are going to get your conviction overturned, you certainly have a better chance if you are sentenced to death rather than life because you are provided with more legal assistance," said Kent Scheidegger, legal director of a law-and-order group fighting Proposition 34. "There is no question about that."

If Proposition 34 passed, convicted murderers, like other felons, would still be entitled to appeal their convictions in state court with government-paid lawyers.
But except in rare circumstances, they would not be given lawyers to investigate and file habeas corpus petitions, which raise evidence the trial court did not hear and which can be heard in federal court once state appeals are exhausted.

Proposition 34 has divided even some opponents of the death penalty.
The Chicago-based Campaign to End the Death Penalty decided not to endorse the measure in part because the group opposes life without parole. The organization said it sent 220 queries about the measure to San Quentin's death row and received about 50 replies. No more than four inmates favored the measure, the group said.

The death row survey was far from scientific, however, and the views of the condemned might depend on how far their appeals have progressed. About 14 inmates have exhausted their appeals and could be executed fairly quickly once executions resume in California, supporters of capital punishment say.
"Death row inmates have a variety of views," said Natasha Minsker, an American Civil Liberties Union policy director who is running the campaign to pass Proposition 34. "There are some who are very eager for it to pass, and some who don't want it to pass."...

Unlike capital inmates, the lifers must either file their own habeas petitions, persuade a judge to appoint a lawyer for them or find an advocate willing to take on their case. Governors have the power to commute life sentences as well as death sentences, though in some cases they must first obtain the approval of the California Supreme Court....

Scheidegger, the lawyer with the conservative Criminal Justice Legal Foundation, said he would not be surprised if death row lawyers felt stronger about abolishing the death penalty than their clients.
"The lawyers tend to be obsessively focused on the death penalty, and the inmates want them to focus more on the conviction," Scheidegger said.
Although death penalty verdicts are rarely overturned, "people do cling to hopes of very unlikely events," Scheidegger said. "That is why we have the lottery."

This story — along with the oft-stated claim by some death penalty abolitionists that a sentence of LWOP is in some respects worse and harsher than death — leads me to wonder if some of the defendants sentenced to death in California might arguably have an ex post facto claim if Prop. 34 were to pass and seek to convert all their death sentences into LWOP sentences.

I am not sufficiently well-versed with ex post facto doctrines to know whether any California capital defendant might have any reasonable legal basis to complain about having his sentence converted to LWOP. But I do know that those on California's death row become much less "special" and are sure to garner much less local, national and international support from most criminal justice reform advocates if they are just lifers rather than condemned killers. Thus I am not surprised by this story, though it makes me further wonder if some marginal voter who really wants to "stick it" to those on California's death row might be actually inclined to vote for rather than against Prop 34 after reading this story.

November 2, 2012

Late yesterday, I got this e-mail alert via the US Sentencing Commission:

The United States Sentencing Commission's Preliminary Quarterly Data Report for the third quarter of fiscal year 2012 is now available on the Commission's website [at this link]. The report includes an extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced during the first three quarters of fiscal year 2012. The report also provides an analysis of sentencing trends over five years for several key sentencing practices.

Only late today did I finally get a chance to look through these new numbers and the only big story within is what I highlighted via the title of this post coming from Table 4 of this big quarterly data report: during the third quarter of FY 2012 (which runs from April 1 to June 30), the rate of government-sponsored departures hit a record high of 28.7%. For some statistical context, the average rate of government-sponsored departures post-Gall has generally been under 26% (although the last six quarters all show rates above that modern historical average).

Interestingly, though the rate of non-government-sponsored below-guideline sentences has actaully declined each of the last three quarter, the rate of within-guideline sentencing hit a modern record low of 53.1% in the third quarter of FY 2012 because of the record-high rate of government-sponsored departures during this period.

The first sensible explanation I can devise for this latest data is that they reflect the impact of the Justice Department's decision way back in January (reported here and here) to authorize so-called "fast-track" departures in all districts, not just in a select few pre-authorized fast-track districts. I suspect that this decision may have led not only to an uptick in government-sponsored fast-track departures, but perhaps also some other types of "government-sponsored" departures in plea agreements for those who might not quite fit the standard fast-track criteria.

"Obama Has Granted Clemency More Rarely Than Any Modern President"

The title of this post is the headline of this story by Dafna Linzer of ProPublica, which tells a tale familiar to regular readers of this blog (and a story which I hope and tentatively predict will change after next week). Here is how the lengthy piece gets started:

A former brothel manager who helped the FBI bust a national prostitution ring. A retired sheriff who inadvertently helped a money launderer buy land. A young woman who mailed ecstasy tablets for a drug-dealing boyfriend, then worked with investigators to bring him down. All of them and hundreds more were denied pardons by President Obama, who has granted clemency at a lower rate than any modern president, a ProPublica review of pardons data shows.

The Constitution gives the president unique power to forgive individuals for federal offenses. While pardons do not wipe away convictions, they can restore a person's full rights to vote, possess firearms and obtain business licenses, as well as remove barriers to certain career opportunities and adoptions. For many applicants, a pardon is simply an opportunity for a fresh start.

But Obama has parceled out forgiveness far more rarely than his recent predecessors, pardoning just 22 individuals while denying 1,019. He has given pardons to roughly 1 of every 50 individuals whose applications were processed by the Justice Department. At this point in his presidency, Ronald Reagan had pardoned 1 of every 3 such applicants. George H.W. Bush had pardoned 1 in 16. Bill Clinton had pardoned 1 in 8. George W. Bush had pardoned 1 in 33.

Obama also has been stingy with commutations, applications for early release by those still serving federal prison sentences. Under Reagan and Clinton, applicants for commutations had a 1 in 100 chance of success. Under George W. Bush, that fell to a little less than 1 in 1,000. Under Obama, an applicant's chance is slightly less than 1 in 5,000.

Though the data above covers familiar ground for those who follow these matters, this press story goes on to report a lot of notable new information. Here is a sample:

Several administration officials who agreed to discuss pardons on the condition of anonymity said the president pardoned nearly every person recommended by Rodgers for approval in his first two years in office, but that such applicants were few and far between. While the number of applicants has increased in recent years, Obama — based on Rodgers' recommendations — is denying more people more swiftly than any of his recent predecessors, the data shows....

Currently, two government officials said, there are about a dozen positive recommendations and hundreds of negative ones waiting for the president to act on. At least one commutation request is pending. The White House also has asked for a fresh review of the case of Clarence Aaron, who is serving a triple life-sentence, without parole, for his role in a drug conspiracy. ProPublica and The Washington Post published a story about Aaron's case in May.

Latest poll shows death penalty repeal leading in California

As reported in this new front-page Sacramento Bee article, advocates for repeal of the death penalty in California have some (surprisingly?) good news in the latest polling data. The article is headlined "Field Poll shows measure to end death penalty gaining, but still lacking 50%," and here are excerpts:

With concern over the cost of capital punishment rising, California voters may be poised for a historic vote to abolish the state's death penalty, a new Field Poll indicates.

Support for the measure, Proposition 34, remains below 50 percent. But the poll released this morning found 45 percent of likely voters favor replacing the punishment with life in prison, while 38 percent oppose doing away with capital punishment.
Another 17 percent say they remain undecided.

The latest survey shows support for abolishing the death penalty rising as Election Day nears. A Field Poll released in September found 42 percent in favor of the measure and 45 percent opposed, with 13 percent undecided at that time.

"It's certainly an encouraging poll for the Proposition 34 supporters, but it still has a long way to go," Field Poll Director Mark DiCamillo said. "It's got to get above 50 percent, and it's moving in the right direction."
DiCamillo said many measures tend to lose support after voters take a closer look at the issues, but Proposition 34 "is actually gaining strength as voters learn more about it."

That may stem from the fact that there is an increasing number of likely voters – 53 percent in the new poll – who have concluded that maintaining the death penalty is more expensive than keeping inmates in prison for the rest of their lives.
The proponents of Proposition 34 have based their campaign on that notion, saying California could save hundreds of millions of dollars by doing away with the death penalty and that the state has spent $4 billion to execute only 13 inmates since the death penalty was reinstated in 1978.

"The single issue that reasonates is cost," said Sacramento attorney Don Heller, who wrote the initiative that restored the death penalty in California in 1978 but now opposes capital punishment.
"Even when you address the issue of potentially executing an innocent person, it's the cost that reasonates. All of a sudden it's being brought home, when counties are going bankrupt and cities are going bankrupt, that there's just not enough money out there."

Death penalty supporters dispute the cost savings claims and questioned the latest poll figures, especially the finding that 17 percent of voters are undecided on such an issue.
"This poll shows that Proposition 34 continues to be under 50 percent," said Peter DeMarco, a spokesman for opponents of the measure. "It's never been above 50 percent since the beginning of the campaign.
And I think the 17 percent undecided is significantly inaccurate for an issue that is of such familiarity in California."

DeMarco said he believes that when voters are asked to actually decide, they will trend toward keeping the death penalty in place. He noted that numerous law enforcement groups, prosecutors and political leaders have spoken out against Proposition 34....

The poll of 1,566 likely voters was taken in two waves of telephone questioning, the first from Oct. 17-24 and the second from Oct. 25-30, and the initiative gained support in the later survey period.
In the first wave, the measure was nearly tied, with 41 percent saying they would vote to abolish the death penalty and 40 percent opposed. It was in the second round of interviews that support rose to 45 percent.

I think it is fair to predict that repeal of California's death penalty via voter initiative would be a transformative moment in the modern history of the death penalty in the United States. Depite these latest poll numbers, I am still expecting/predicting that Proposition 34 will fail. Nevertheless, I find the trends here fascinating and perhaps yet another example of Justice Thurgood Marshall's (in)famous hypothesis in Furman that the more informed people are about the actual operation of the death penalty, the less likely they are to support its administration.

The Court heard argument yesterday in two cases involving the use of drug-detection dogs. In Florida v. Jardines, the Court considered whether a dog sniff at the front door of a suspected marijuana grow house by a trained narcotics detection dog constitutes a Fourth Amendment search. In Florida v. Harris, the Court considered whether an alert by a trained drug-detection dog provides sufficient probable cause to search a vehicle....

After postponing Tuesday’s oral arguments because of Hurricane Sandy, the Court [also has heard] arguments in two cases this morning. In Bailey v. United States, the Court will consider whether police executing a search warrant can detain someone who left the premises to be searched before the search began. At The Atlantic, Daniel Epps argues that the case “should tell us something about just how interested Justice Scalia is in rethinking Fourth Amendment law in his remaining years on the Court.”

The Court [also now has heard] argument in Chaidez v. United States, in which it will consider whether Padilla v. Kentucky, in which it held that criminal defendants receive ineffective assistance of counsel when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation, applies retroactively.

I have left out a bunch of links and commentary from the SCOTUSblog round-up, though I urge anyone interested in these issues to click through to see what others are already saying about these cases. Not surprisingly, Chaidez has garnered the least attention so far, even though it is probably the only case from these two days of argument likely to get hard-core sentencing fans excited. The oral argument transcript from Chaidez is available at this link, and I hope to find time late tonight to read and comment upon what the Justices had to say about Padilla and retroactivity.

"The Sixth Amendment Rights to Fairness: The Touchstones of Effectiveness and Pragmatism"

The title of this post is the title of this paper by Robert Mosteller now available via SSRN. Here is the abstract: <

P>The Sixth Amendment is aptly described by Akhil Amar as the “heartland of constitutional criminal procedure.” It is a major part of the Framers’ designed to ensure a fair trial and provides the opportunity for the accused to challenge the prosecution’s case and to demonstrate innocence. However, as woeful inadequate funding for indigent defense undercuts the reality of the constitutional right to counsel and as trials become more and more rare, a broader focus is needed.

In a time in which it is painfully obvious that we have limited resources available to meet public needs and a reticence to extend legal doctrines, those interested in progressive reform should look beyond developing new legal doctrine. The fundamental Sixth Amendment interest in fairness can be furthered by administrative mechanisms and aided by actors in the criminal justice system beyond defense attorneys. The victories may not be stirring or draw public note, but for the individuals not prosecuted or incarcerated erroneously, they can be extraordinarily significant and fulfill the basic promise of the Sixth Amendment.

Don't some horror movies start with an execution on Halloween?

The silly question in the title of this post is prompted by the fact that two states had executions go forward over the last few spooky days: as reported here by the AP, "Donnie Lee Roberts, convicted in his girlfriend's 2003 slaying in Texas, was executed Wednesday for fatally shooting the woman and taking items from her home to sell or trade to support his drug habit"; as reported here by Reuters, a "man convicted of the 1990 rape and murder of a 9-year-old girl was put to death on Tuesday night in a South Dakota execution witnessed by the victim's parents, who drove 1,400 miles from their New York home to watch him die."

I believe that there have now been 36 executions throughout the United States in 2012, and DPIC indicates here that eight more serious execution dates are on the scheduled for the next two months. If all these executions go forward, there could be a slight uptick (from 43 to 44) in the number of executions this year compared to 2011.

October 31, 2012

"The Imprisoner’s Dilemma: A Cost Benefit Approach to Incarceration"

The title of this post is the title of this paper by David Abrams and available on SSRN. Here is the abstract:

Depriving an individual of life or liberty is one of the most intrusive powers that governments wield. Decisions about imprisonment capture the public imagination. The stories are told daily in newspapers and on TV, dramatized in literature and on film, and debated by scholars. The United States has created an ever-increasing amount of material for discussion as the state incarceration rate quadrupled between 1980 and 2000. While the decision to incarcerate an individual is given focused attention by a judge, prosecutor, and (occasionally) a jury, the overall incarceration rate is not.

In this article, I apply a cost-benefit approach to incarceration with the goal of informing public policy. An excessive rate of incarceration not only deprives individuals of freedom, but also costs the taxpayers large amounts of money. Too little imprisonment harms society in a different way -- through costs to victims and even non-victims who must increase precautions to avoid crime. Striking the right balance of costs and benefits is what good law and public policy strive for.

Changes to the inmate population may be made in several different ways. One insight that I stress in this article is that the precise form of a proposed incarceration policy change is crucial to properly evaluating the impact of the change. Therefore, I analyze several potential policy changes and their implications for sentencing and imprisonment. The calculations are informed by recent empirical work on the various ways in which imprisonment impacts overall welfare. I find that the benefits of limited one-time prisoner releases, as well as the reclassification of some crimes exceed the costs.

If nothing else, pot legalization initiatives in 2012 have produced serious buzz

With now less than a week to go before election day, the mainstream media is starting to discuss more broadly the possibility that one or more state will legalize marijuana. Here is just a sampling of some of the notable recent media stories from outside the trio of states (Colorado, Oregon, Washington) in which voters are soon to have their say on state pot prohibition:

From Governing magazine here, "Marijuana Legalization Close to Passage in Two States"

As reported in this local article, headlined "Judge temporarily blocks part of Simi Valley Halloween sex offender law," a notable constitutional lawsuit resulted in a split outcome in California federal court. Here are the details:

A federal judge Monday temporarily blocked enforcement of a key provision of Simi Valley's new Halloween sex offender law but left the rest of the ordinance intact.
U.S. District Judge Percy Anderson's ruling came days before the holiday on Wednesday.

Anderson temporarily blocked the city from requiring its several dozen convicted child sex offenders listed on the Megan's Law website to post signs on their front doors on Halloween saying: "No candy or treats at this residence."

But Anderson let stand requirements that the offenders refrain from opening their doors to trick-or-treating children and decorating the outside of their homes or front lawns with Halloween ornaments. The convicts also must turn off outdoor lighting on their properties from 5 p.m. to midnight Wednesday.

Attorney Janice Bellucci, who last month filed a lawsuit saying the law was unconstitutional, said she was pleased with the ruling even though she had sought to have enforcement of the entire ordinance temporarily blocked pending the outcome of the lawsuit.

Simi Valley City Attorney Marjorie Baxter said the ruling was "a big victory on the majority of the ordinance."
The Simi Valley City Council on Sept. 10 enacted the law — the only one of its kind in Ventura County — to try to prevent sex offenders from having contact with trick-or-treating children. It was championed by Mayor Bob Huber, a lawyer who is seeking re-election Nov. 6.

Bellucci, president of the board of a group called California Reform Sex Offender Laws, filed the suit Sept. 28 on behalf of five registered sex offenders, three of their spouses and two of their children, all Simi Valley residents. It says the law violates the First and 14th Amendments of the Constitution because it "suppresses and unduly chills protected speech and expression."

Private attorneys representing the city in the lawsuit disagree.
"Convicted child molesters have no constitutionally protected right to hand out candy at Halloween," they said in court papers. "Children, on the other hand, do have a constitutionally protected right to be safe from sexual assault."

I find intriguing the city's assertion that children have a "constitutionally protected right to be safe from sexual assault," in part because taking that claim seriously could subject the city to liability if and whenever the city failed to keep children safe from sexual assault in other settings.

This local article from Oregon reports on what appears to be a significant sentencing decision by a federal district judge concerning the application of a mandatory minimum provision. Here are the details:

Rejecting mandatory minimum five-year sentences as “grossly disproportionate” to the crimes, a federal judge in Eugene on Tuesday sentenced an Eastern Oregon rancher to three months in prison and his adult son to one year and a day for deliberately setting fires on federal land.

A federal jury in June convicted the Harney County pair after a two-week trial in Pendleton.
Jurors convicted Dwight Hammond Jr., 70, on a single count of arson for “intentionally and maliciously” setting the 2001 Hardie-Hammond Fire in the Steens Mountain federal management and protection area. They convicted Steven Dwight Hammond, 43, of the same crime and of a second arson count for similarly setting the 2006 Krumbo Butte Fire. It burned in the same area and in the Malheur National Wildlife Refuge.
The jury acquitted both men on arson charges in two 2006 fires.

U.S. Judge Michael Hogan agreed with the Hammonds’ defense lawyers that setting fire to juniper trees and sagebrush in the wilderness was not the type of crime that Congress had in mind when it set mandatory sentences of five to 20 years for anyone who “maliciously damages or destroys, or attempts to damage or destroy by means of fire” any federal property. The mandate was part of the Antiterrorism and Effective Death Penalty Act of 1996.

Prosecutors alleged that the father-son owners of Hammond Ranches Inc. set a series of fires on U.S. Bureau of Land Management land where the Hammonds had grazing rights. Prosecutors said the fires were set to reduce the growth of juniper trees and sagebrush, and to accelerate the growth of rangeland grasses for the Hammonds’ cattle....

In a sentencing memo, the defense lawyers noted that both men have served on the French Glen School Board, Community Club and Site Council, and were “instrumental” in founding and financing the French Glen Education Foundation, which funds extracurricular activities for area students. The Hammonds also regularly host an annual science and careers fair for seven rural schools, contribute money and food to the Harney County 4-H and FFA clubs, and donate meat to the Harney County Senior Center, the memo said.

Assistant U.S. Attorney Frank Papagni acknowledged that the Hammonds, “both of them, have done many wonderful things for the community.”
But he urged Hogan to follow the law, noting that Steven Hammond’s nephew — Dwight Hammond’s grandson — testified that he “thought he was going to get burned up” when flames moved toward him as the then-13-year-old followed his uncle’s orders to light brush with matches.

The arsons also endangered the lives of BLM firefighters and hunters camping near one of the blazes, the government alleged.
“Congress decided that this particular offense should carry a mandatory, statutory minimum term of five years,” Papagni wrote in the government’s sentencing memo. “The evidence of defendants’ guilt was substantial. The jury’s verdict of guilt for this particular offense mandates imposition of the required statutory minimum term, as the statute constrains this court’s discretion.”

Hogan disagreed, imposing the lesser terms. He also sentenced both Hammonds to three years of postprison supervision and required them to surrender their firearms. The judge also allowed the men to stagger their sentences in order to keep operating their ranch. He ordered Dwight Hammond to report to prison in January, with Steven Hammond to begin his sentence upon his father’s release.

As the title of this post indicates, it seems from the first sentence of this report that Judge Hogan concluded it would be unconstitutional based on the Eighth Amendment to apply a five-year mandatory minimum under the circumstances. (Side note: this companion article reports that this sentencing took place on Judge Hogan's last day on the bench.)

It will be interesting to follow if federal prosecutors seek to appeal this sentence to the Ninth Circuit. I predict that the feds will fear a "bad panel" and thus a "bad ruling" from the Ninth Circuit and thus will decide not to appeal.

October 30, 2012

Three former California Govs (but not the Terminator) advocate against terminating the death penalty

As reported in this Reuters article, which is headlined "Trio of former California governors seeks to preserve death penalty," some former chief executives of the Golden State are speaking out about the state's death penalty ballot initiative. Here are the details:

A trio of former California governors urged voters on Tuesday to preserve the death penalty in the state by defeating a ballot initiative seeking to abolish capital punishment on cost grounds, and a recent poll showed the measure gaining support but falling short of passing.

The initiative, if passed by voters next week, would automatically commute the sentences of 725 death row inmates in California, which has nearly a quarter of the nation's condemned prisoners but has executed none in the last six years.

"Prop. 34 is a horrible injustice," said former Democratic Governor Gray Davis, referring to the ballot proposition. "Like a giant eraser, it would wipe out the death penalty convictions of 700 killers on death row."

Those convicts are responsible for killing 200 children and 43 police officers, said Davis, who was governor from 1999 to 2003 and who was joined in opposing death penalty repeal by former Republican governors Pete Wilson and George Deukmejian.
"Don't let the bad guys on death row win," Davis said. The governors were joined at a Los Angeles hotel by relatives of murder victims, prosecutors and police officers.

California Governor Jerry Brown, a Democrat, and his Republican predecessor, Arnold Schwarzenegger, have been silent on the initiative.

The push by the former governors follows a poll of 1,504 registered voters released on Friday by USC Dornsife and the Los Angeles Times that showed support for repeal at 42 percent, with 45 percent opposed. The poll had a margin of error of 2.9 percent.
Those numbers represented a much narrower gap than in a September survey by the same group that showed the pro-repeal side at 38 percent compared to 51 percent who wanted to keep the death penalty.

A helpful reader alerted me to a series of recent notable Tenth Circuit decisions regarding application of the Armed Career Criminal Act and sent along this detailed summary for posting (which probably only hard-core ACCA fans will enjoy, but they should enjoy it lots):

Federal practitioners know that the meaning of the ACCA/4B1.2(a)(2)’s residual clause is one of the most frequently occurring yet confusing issues in federal sentencing law. And the confusion does not seem to be subsiding. Perhaps best illustrating this are three cases issued by the Tenth Circuit within just a two-week time span.

First came US v. Sandoval, No. 11-1303 (10th Cir. Oct. 9, 2012) (available here). The issue there was whether a prior conviction for “heat-of-passion” assault should be classified as a violent felony under the ACCA’s residual clause. The heat-of-passion offense read: "If assault in the second degree is committed under circumstances where the act causing the injury is performed, not after deliberation, upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the person causing the injury sufficiently to excite an irresistible passion in a reasonable person."

The Sandoval court held that such a crime is an ACCA violent felony. But, in doing so, the opinion contained some telling language. The opinion began by explaining: “This is another of those cases, now becoming legion[FN1] where we must decide if a prior conviction constitutes a violent felony under the Armed Career Criminal Act (ACCA).” Footnote 1 then explained how courts continue to face this issue and yet “[t]he law is not well-settled.” A few pages later, the opinion lamented how Sykes, the Supreme Court’s latest excursion into residual-clause land, is “not a model of clarity." Footnote 8 then went on for four paragraphs about the confusion.

Sandoval raises a number of very interesting questions. Among them:

1) What is the meaning of Begay post-Sykes?

2) Is a heat-of-passion offense akin to the type of mens rea crime at issue in Begay, or is Sykes the more analogous case?

3) Is a Begay analysis ever needed when the offense at issue is not one of strict liability, negligence, or recklessness?

4) If so, is a heat-of-passion offense “similar in kind” to the ACCA example crimes, none of which involve either the victim’s provocation or an irresistible passion of a reasonable person?

5) Is Begay's "in kind" analysis solely limited to an inquiry about being "purposeful, violent and aggressive," or can an offense be different from the example crimes "in kind" in a different way?

The first question is the big one, and questions two through five seem to inextricably follow from the first. Despite this confusion, the Tenth Circuit held that a heat-of-passion offense — where A) the victim provokes the offense, B) the offender is acting pursuant to an irresistible passion in a reasonable person, and C) there is no deliberation — is similar to the ACCA enumerated crimes. With so many important questions involved, this may be the perfect post-Sykes case to clarify the US Supreme Court’s residual clause precedents.

Nine days later, the Tenth Circuit returned to the uncertainty surrounding the residual clause in US v. Duran, No. 11-1308 (10th Cir. Oct. 18, 2012) (available here). There, the Circuit held that aggravated assault by recklessly causing bodily injury does not satisfy the residual clause (this time under USSG § 4B1.2(a)(2)). Even though the prior offense required causing bodily injury to the victim, the Circuit reasoned that Begay prevents reckless conduct from satisfying the residual clause. This certainly appears to be the correct outcome; Sykes itself implies that reckless crimes are outside of the residual clause. Nevertheless, the Tenth Circuit panel still questioned its earlier precedent on that issue, and wondered aloud “if Begay is still good law.” See footnote 1.

Finally, four days after that, the Tenth Circuit again found itself in residual-clause land with US v. Maldonado, No. 11-2168 (10th Cir. Oct. 22, 2012) (available here). This time, the Tenth Circuit held that California’s first-degree burglary statute, although not constituting the generic, enumerated offense of burglary, did satisfy the ACCA’s residual clause. The court reached this result by applying “a two-part test, asking first whether the offense poses a serious potential risk of physical injury to another and second, whether the offense is ‘roughly similar’ in kind and degree of risk as the enumerated crimes in the ACCA.” The Circuit stressed again — as it did in Sandoval and Duran — that part two of the test is “subject to some debate,” noting how the Supreme Court is “splintered” on part-two. See footnote 6. The Maldonado panel also felt it important to remind us of Sandoval’s commentary on this confusion. See footnote 7.

The Tenth Circuit is not alone in tiring of the “legion” of cases it must decide on the ever-elusive meaning of the residual clause. And its frustration over this uncertain area of the law is warranted. Tellingly, the three opinions are each authored by a different judge, and they constitute seven of the nine active Tenth Circuit judges and one Senior Judge. Ultimately, the Supreme Court should heed the Tenth Circuit’s frustration and clarify this “splintered” issue sooner rather than later. (Or, for that matter, declare the clause void for its vagueness.) The issue is too important and commonly occurring to continue leaving the lower courts without much-needed guidance.

"A Theory of Criminal Victimization"

The title of this post is the title of this intriguing new paper by Joshua Kleinfeld now available via SSRN. Here is the abstract:

Criminal punishment is systematically harsher, given a fixed crime, where victims are vulnerable or innocent, and systematically less harsh where victims are powerful or culpable. We make a distinction between one gangster attacking another and a gangster attacking a bystander (though the assaults might be formally identical), or between selling drugs to an adult and selling them to a child (though the penal code might treat the two as the same). Yet this pattern in blame and punishment has been overlooked. Criminal scholarship and moral philosophy have offered no theory by which to explain it. And, lacking a theory, the pattern itself has been missed or misunderstood empirically.

This Article sets forth the concept of “victimization” — the idea that the moral status of a wrongful act turns in part on the degree to which the wrong’s victim is vulnerable or innocent and the wrongdoer preys upon that vulnerability or innocence. It shows the concept to be implicit in both the doctrine and practice of criminal law. And it argues normatively that victimization is at the same time essential to criminal justice and peculiarly prone to illiberal distortions, and should therefore be at once preserved and constrained.

A concluding section reflects methodologically on the paper’s approach to moral philosophy in law — an approach in which the law is not just a tool with which to implement the conclusions of an extralegal philosophical inquiry, but an object of study with a certain immanent moral content already in place, which philosophy can help bring to light and expose to question.

This local article, headlined "Antioch man cannot use medical marijuana while on probation for pot sales, court rules," reports on an interesting ruling from a California intermediate appellate court. Here are the details:

A state appeals court ruled in San Francisco on Monday that trial judges can ban the use of medical marijuana in some cases as a condition of probation for people convicted of possessing the drug for sale.

A three-judge panel of the Court of Appeal unanimously upheld a sentence in which Contra Costa County Superior Court Judge Leslie Landau last year prohibited Daniel Leal, 28, of Antioch, from using medical marijuana during his three years of probation.

Leal was sentenced to the probation term as well as to nine months in county jail after being convicted of possessing marijuana for sale in two incidents in Antioch in 2008 and 2009 and carrying a concealed, loaded gun in the first incident.
Leal, who has completed his jail sentence, appealed the probation condition barring him from using medical marijuana.

He argued the ban violated his right to use the substance under the state's voter-approved Compassionate Use Act of 1996, which allows patients with a doctor's approval to use marijuana for medical purposes.
Leal, who had approval for marijuana treatment for high blood pressure, contended the probation condition wasn't related to his crimes and that there could have been a way to limit his use of medical marijuana without prohibiting it entirely.

But Justice Anthony Kline, writing for the appeals panel, said the ban on use of the substance was justified by "abundant evidence of need to rehabilitate
Leal and protect the public."...

Kline wrote in Monday's decision that trial judges setting probation conditions must balance the need to protect the public with California residents' right to use medical marijuana.
He said there could be cases in which a ban would not be justified if a defendant posed little threat to society and had proved a compelling need for marijuana to alleviate pain.

But the evidence in Leal's case didn't show an overriding medical need and did show "both rehabilitative and public protection value in interfering with Leal's medical use of marijuana while on probation," Kline wrote.

Leal's lawyer in the appeal, Donald Lipmanson of Sebastopol, said no decision has been made on whether to ask the California Supreme Court to review the case.
Lipmanson said the decision was consistent with other state appeals court rulings on the issue, but said the panel's purpose in issuing the detailed 22-page opinion may have been "to send a very clear message that if you end up being convicted of possessing marijuana for sale, don't expect to be able to continue using medical marijuana."

October 29, 2012

As reported here, the "Supreme Court of the United States will not convene on Tuesday,
October 30 due to weather conditions related to Hurricane Sandy." As a result, "oral arguments scheduled to be heard on October 30 have been rescheduled
for Thursday, November 1." As SCOTUSblog details here, two criminal cases are the ones rescheduled:

The two cases that will go over from Tuesday to Thursday are Chaidez v. United States (11-820), on retroactivity of the decision in Padilla v. Kentucky on required legal advice to clients when they are considering guilty pleas that may lead to their deportation from the United States, and Bailey v. United States (11-770), on whether police may detain a suspect away from the site of a search for which they have a warrant, while they carry out the search.

As of this writing, SCOTUS is still planning to be open and hear arguments in the two "dog-sniff" Fourth Amendment cases on Wednesday. Orin Kerr has an astute preview of these cases in this lengthy post at The Volokh Conspiracy.

Split Ninth Circuit panel reverses death sentence for murder on row since 1978

As reported in this Los Angeles Times piece, a Ninth Circuit panel on "Monday overturned the death sentence of California’s longest serving death row inmate on the grounds that his defense lawyer failed to investigate and present mitigating evidence during the penalty phase of his murder trial." Here is more:

A three-judge panel of the 9th Circuit U.S. Court of Appeals decided 2-1 that Douglas R. Stankewitz, convicted of murdering Theresa Greybeal in Fresno in 1978, should be re-sentenced to life without possibility of parole unless prosecutors retry the penalty phase of his murder case....

The 9th Circuit majority said Stankewitz’s lawyer presented only a “paltry” amount of evidence in trying to persuade jurors against a death sentence, ignoring extensive documentation of the defendant’s “deprived and abusive upbringing,” potential mental illness, long history of substance abuse and use of drugs leading up to the murder....

Judge Raymond C. Fisher, writing for the court, said the jury might have opted for a life sentence had it learned of Stankewitz’s life story and his heavy use of drugs in the hours before the murder. Stankewitz's defense lawyer “did not obtain a psychological examination of Stankewitz, despite his belief that Stankewitz was not mentally competent, and did not pursue any of the evidence of Stankewitz’s history of drug and alcohol abuse,” wrote Fisher, a Clinton appointee....

Judge Diarmuid F. O’Scannlain, a Reagan appointee, dissented. O’Scannlain contended the lower court applied the wrong legal standard and argued that the case should have been returned to the district court for reconsideration under a different standard.

The title of this post is the headline of this (amusing?) article which tells a story that is arguably not quite as bad as it sounds or maybe actually even worse. Here are the details:

A man in the central Chinese province of Hunan was sentenced to a year in prison for improperly administering the nation's ultra-competitive national college entrance exam, according to multiple reports.

Xiao Yulong, now a former employee of the high school in which the exam was administered, rang the bell and ended the exam four minutes and 48 seconds early, which disrupted the test for approximately 1,000 students, according to the Xinhua news agency.

A written statement issued by the county people's court on October 26 said that Xiao, 54, "was careless in his work and mistakenly rang the bell too early, resulting in adverse social impact." He was officially sentenced to one year in jail with a one-year reprieve for negligence. However, the one-year reprieve means he will likely serve "either very little or no time inside," Reuters reports.

Thousands of students and parents had gathered in protest against the teacher's actions at the local ministry of education and the school prior to Xiao's sentencing.

The reported reprieve suggests that Xiao Yulong was ultimately just given relative a slap on the wrist; yet it is still remarkable and disturbing that an official's negligent test administration became the subject of a criminal prosecution. Bringing this story back to the US, perhaps there is a lesson here for politicians worried about underperforming public school systems and competing in the global market with China. Maybe mayors like Rahm Emanuel need to start advocating for jail time for negligent teachers like in China when facing off with teachers' unions (as public school battles rage on in Chicago and elsewhere).

FBI reports crime was down yet again in 2011 (though BJS said it was up)

As reported in this official press release, based on "figures released today by the FBI, the estimated number of violent crimes in 2011 declined for the fifth consecutive year. Property crimes also decreased, marking the ninth straight year that the collective estimates for these offenses declined." Here is more:

The 2011 statistics show that the estimated volumes of violent and property crimes declined 3.8 percent and 0.5 percent, respectively, when compared with the 2010 estimates. The violent crime rate for the year was 386.3 offenses per 100,000 inhabitants (a 4.5 percent decrease from the 2010 rate), and the property crime rate was 2,908.7 offenses per 100,000 persons (a 1.3 percent decrease from the 2010 figure).

These and additional data are presented in the 2011 edition of the FBI’s annual report Crime in the United States [available here]. This publication is a statistical compilation of offense and arrest data reported by law enforcement agencies voluntarily participating in the FBI’s Uniform Crime Reporting (UCR) Program.

The UCR Program collects information on crimes reported by law enforcement agencies regarding the violent crimes of murder and nonnegligent manslaughter, forcible rape, robbery, and aggravated assault, as well as the property crimes of burglary, larceny-theft, motor vehicle theft, and arson. (Although the FBI classifies arson as a property crime, it does not estimate arson data because of variations in the level of participation by the reporting agencies. Consequently, arson is not included in the property crime estimate.) The program also collects arrest data for the offenses listed above plus 20 additional offenses that include all other crimes except traffic violations.

These data are a bit of a head-scratcher, in part because, as noted in this prior post, the US Bureau of Justice Statistics' annual national crime victimization survey showed an increase in both violent crime and property crime for 2011. So now I do not know whether to worry about crime going up or to worry about whether we can be sure if crime is going up or going down.

SCOTUS offering more habeas fun this Term with new cert grants

As reported in this SCOTUSblog post, the US Supreme Court this morning granted cert in four new cases, and two involve habeas review:

[The] new cases includ[e] a plea to give convicted individuals a new chance to claim that their defense lawyers in state court failed to perform adequately. That is an issue that arose in the wake of last Term’s decision in Martinez v. Ryan. The new case on that question is Trevino v. Thaler (11-10870).

[Another of the] granted cases [includes] a test of whether a convicted individual’s claim of innocence of the crime will be treated as an excuse for failing to pursue a federal habeas challenge on time (McQuiggin v. Perkins, 12-126).